The bombshell brief filed last week by attorneys representing Sholom Mordechai Rubashkin is more than a brilliantly written and very compelling legal argument. It is a piercing call for justice.
The 52-page merits brief and its accompanying 177-page appendix tell a gripping and frightening tale, one that speaks volumes about a tragic saga that for the past six years has shocked and horrified Jews and legal scholars throughout the world.
As the many who have been following the Rubashkin story are well aware, the reason given by the presiding judge for Sholom Mordechai’s extraordinarily stiff sentence — 27 years in jail, a punishment that exceeds sentences given to second-degree murderers and terrorists — was primarily the result of the court’s finding that the loss incurred by the bank involved in this case was approximately $27 million.
At the sentencing hearing, attorneys for Rubashkin had argued that this loss was attributable to the U.S. government’s insistence that no member of the Rubashkin family could be involved in any way in ownership or management of Agriprocessors, the company Sholom Mordechai helped run, but that was actually owned only by his father, Aaron. This “No-Rubashkin edict,” which the government enforced through the threat of forfeiture, deterred interested buyers, and eventually, a company with assets worth at least $68.6 million and $300 million in annual revenue sold for a fraction of that amount — a mere $8.5 million.
Had the company been sold for even $40 million — a sum offered by one would-be buyer before he was frightened off by the prosecutor’s conditions — the loss for the bank would have been zero.
In her sentencing memorandum, Judge Linda R. Reade rejected this claim, asserting that “the attorney for the Trustee in the Bankruptcy Action, Paula Roby, testified that there was no such condition attached to the sale of Agriprocessors. The court credits Roby’s testimony and discredits testimony from Defendant’s witnesses.”
The legal argument set forth in the brief, the culmination of almost three years of investigation by the Rubashkin legal team, headed by Gary Apfel, an attorney in Los Angeles, and Stephen Locher, an attorney in Des Moines, Iowa, provides overwhelming evidence that Ms. Roby’s testimony was false and misleading. Furthermore, the assistant U.S. attorney prosecuting the case and the sentencing himself had demanded the “No Rubaskhkin” condition.
Recently obtained notes of a key meeting between lawyers for the trustee — including Ms. Roby — and the prosecutors, reveal that the prosecutors demanded that neither Aaron Rubashkin, the owner of the company — a man who was never charged with any crime — nor any other members of his family could have any ownership or management role in the successor entity to Agriprocessors. In the chilling words of Assistant U.S. Attorney Richard Murphy: “No Rubashkins is very important to us — non-negotiable.”
This latest legal filing also includes a powerful affidavit by Mr. Sarachek, the trustee that Ms. Roby represented.
Sarachek underscores the fact that in his view, “Aaron Rubashkin, in particular, was vital to maximizing the value of the Company on a going forward basis, as he had the relationships with large customers and unmatched experience and knowledge in the industry.”
Yet, Sarachek states that the prosecutors “were particularly focused on making sure the Company was not sold to Aaron Rubashkin or any other member of the Rubashkin family, and that no member of the Rubashkin family would have any involvement in managing the business on a going forward basis. Prosecutors made this restriction very clear to my attorneys and me during the meeting shortly after my appointment as Trustee.”
Furthermore, “several potential buyers who appeared to be well-capitalized and had the wherewithal to purchase the business, including, among others, Meyer Eichler and Abraham Shaulson, expressed interest in having an ongoing relationship with the Rubashkins if they purchased the company. However, at the government’s direction, I disclosed to Eichler, Shaulson, and others that members of the Rubashkin family could not be involved in buying or managing the Company.”
The government now has 60 days to respond to this brief. Kevin W. Techau, the current United States attorney for the Northern District of Iowa, who was appointed by President Barack Obama in November 2013, and unanimously confirmed by the United States Senate in February 2014, was not previously involved in the Rubashkin case.
We urge and hope that Mr. Techau will show the legal courage that has been exhibited by other prosecutors, including Brooklyn District Attorney Ken Thompson, who, when confronted with new compelling evidence, have not hesitated to seek the overturn of wrongful convictions or sentences obtained by their predecessors.
It is now clear that Judge Reade was misled by a witness she thought was trustworthy. Now that the truth has emerged, we respectfully urge Her Honor to immediately bring to an end this colossal miscarriage of justice that we believe is a disgrace to the entire judicial system of the United States.
As a community we must do our part as well. From the time this saga was brought to the attention of the public, Torah Jewry has demonstrated great unity, anguish and genuine concern. Multitudes continue to daven for Sholom Mordechai Halevi ben Rivka, and closely follow every new development in this case. Now is the time to intensify those prayers, and implore the Al-mighty that Sholom Mordechai is speedily freed from prison and is reunited with his family.